Plans by the European Union to prohibit Internet service providers (ISPs) from blocking or throttling customers' access under new net neutrality rules will not have any impact on website blocking at a member state level.
As reported by our London bureau on Tuesday, EU Digital Agenda Commissioner Neelie Kroes set out plans to prevent anti-competitive blocking of rival services, such as those that compete with their own offerings.
She cited services such as Skype and WhatsApp being blocked or degraded "simply to avoid the competition."
But the EU has no plans to intervene in court-sanctioned website blocking, such as The Pirate Bay blocks in the U.K. and other file-sharing sites. All the EU is promising is to prevent the "blocking or throttling of competing services."
Net neutrality is one of the most disputed and argued points in Europe at the moment. Internet and broadband providers want to limit certain traffic to certain areas in order to give everyone a fair amount of bandwidth — ensuring that data hogs don't impede someone else's service, while customers want access to everything, and faster network speeds.
Also, some Internet lines are being deliberately degraded by ISPs in order to manage the traffic on their networks, such as to avoid congestion. Kroes said some of these reasons are "legitimate," but noted: "When you buy a carton of milk, you don't expect it to be half-empty."
The new proposed law, in form of a one-size-fits-all "regulation" — each member state has exactly the same law, as opposed to a directive that allows some interpretation — could be in force as soon as early 2014.
In spite of Kroes' promise for a "full and open Internet on every device, on every network," the European Commission has no plans to intervene in member-state judicial requests for website blocking. That means sites like The Pirate Bay, and other file-sharing sites, will remain blocked in their respective countries, unless the ISPs challenge the ruling at a higher court.
A spokesperson for the European Commission said they could only comment on specific cases.
Now The Pirate Bay has been blocked, every other site is at risk
Once anti-piracy groups and record labels were successful in seeking a court order against U.K. ISPs preventing a nationwide block on The Pirate Bay, it opened up the floor to any other website for almost any given reason.
The U.K.'s anti-piracy legislation, the Digital Economy Act, was brought into law by a fraction of parliamentary representatives in 2010. But in order for the "three strikes" and you're cut off from the Web rule to go into force, it required an authorization from Brussels.
The "enabling" of the U.K.'s Digital Economy Act was not quick enough for copyright holders, including the music and film industry. The British Phonographic Industry (BPI), the country's record industry's trade association, brought a case to court against one of the biggest file-sharing sites of them all.
In April 2011, the High Court in London ruled that BT, the country's largest broadband provider, must block access to file-sharing site Newzbin2 — using none other than the Cleanfeed system, which was previously used only to block child pornography. It was widely seen as a "test case" building up to forcing bigger file-sharing sites off the U.K. Web.
BT did not appeal the decision, leading to a damaging legal precedent under U.K. law. From the moment of that ruling, any individual or organization could bring a separate case against any other online property, claiming under civil or criminal — from libel through to copyright infringement — that the site broke the law .
The ISPs said they would only comply with the request if a court order forced them to do so. But almost exactly a year later, six of the U.K.'s largest broadband providers were told by the same High Court to impose a block on their customers from accessing Magnet-link sharing site The Pirate Bay.
The British Phonographic Industry had brought the case to the High Court in London. BPI chief executive Geoff Taylor told the BBC that it will continue to pursue legal action against "illegal sites" that are "ripping off" the artists.
Meanwhile, in the Netherlands, where blocks were put in place following similar legal challenges, Dutch ISP XS4All said its customers' traffic to The Pirate Bay went up rather than down. Two more ISPs, according to TorrentFreak, suggested that the blocks did not adversely affect peer-to-peer traffic.
And the Netherlands has net neutrality laws, yet still blocks websites through judicial means.
Copyright reform unlikely, yet only option
The EU's only option is to agree on comprehensive copyright laws that member states and their courts would have to respect. In such a case, it would supersede national law.
In spite of the huge uproar to last year's first court ruling on The Pirate Bay being blocked by the U.K.'s largest ISPs, there is no institutional momentum to achieve a unified set of laws that could overhaul the EU's copyright system.
Sources at the European Parliament, who did not wish to be named, confirmed that the 27 heads of the EU member states are not likely to pass the laws at the European Council any time soon, due to a differing approach over whether such laws should be interpretive "directives" or consistent "regulations."
Changes to the copyright system are expected to go ahead in 2014. During a May 30 meeting, both Belgium and France said that they want strong protection for authors and content creators, while a number of other countries — including the U.K. and Spain — favor harmonizing the levy system in the region, suggesting a regulation-type approach.
But ministers did not set out a definitive course of action, according to following reports.
It comes just a few months after 12 EU prime ministers penned a letter arguing for the need to stimulate economic growth. One of the priorities on the list was building an efficient copyright system.
"The digital economy is expanding rapidly, but cross-border trade remains low, and creativity is stifled by a complex web of differing national copyright regimes," the letter said.
"Action is needed at the EU level to provide businesses and consumers with the means and the confidence to trade online, by simplifying licensing, building an efficient framework for copyright, providing a secure and affordable system for cross-border online payments, establishing online dispute resolution mechanisms for cross-border online transactions, and amending the EU framework for digital signatures."
Neither the French nor Belgian prime ministers' names were included in the letter.
According to a European Commission spokesperson, while the EU believes that copyright law has to be updated, particularly on matters of licensing content and making sure legal content is accessible wherever the user is in the EU, "it doesn't mean people can just ignore the law in the meantime."